Mark Parthemer, AEP
Does a voicemail message to your attorney constitute an amendment to your will?
Will an Excel spreadsheet with details on your estate plan be implemented?
When it comes to informal will and trust modifications, there are two court cases that represent what strikes a chord and what is out of tune.
The Case of the Handwritten Notes
Aretha Franklin died in August 2018, survived by her four sons. Originally, she was thought to be intestate (dying without a legal will), and with no will, her assets would have passed equally to her four children.
However, in May 2019 two documents were discovered in her home — a 2010 handwritten, notarized (but not witnessed) note in a locked cabinet and a 2014 four-page handwritten, non-notarized (also not witnessed) note under a couch cushion. Neither document was prepared by a lawyer, and both contained a list of her assets, details regarding distributions and royalties as well as extraneous information irrelevant to her estate. The notes were difficult to read, with many words crossed out, arrows pointing in various directions and mostly illegible scribblings in the margins. The 2014 note even had a smiley face in lieu of her first initial in her signature.
Ms. Franklin had also left voicemail messages on her attorney’s office line in May 2018, further complicating matters. In these messages, she talked about changes she wanted made to the draft of a will she had hired the attorney to prepare but never signed. At trial, the voicemail messages were played and then excluded, leaving the decision to one of three possibilities — intestacy, the 2010 note or the 2014 note.
After a long and expensive court case, in July 2023 a Michigan jury ruled that the 2014 note found in her couch should serve as her will. The trial lasted two days, and jury deliberations took less than an hour. This was a victory for two of her sons, who believed the 2014 note should override the 2010 one. One son did not appear, and another settled for an undisclosed percentage of the estate.
The Case of the Trust and the Spreadsheet
Gregory Hall created a revocable trust that he subsequently amended and restated, indicating that his three children would split the residue of the trust upon his death. Several years after the trust was updated, he created a spreadsheet. A few years later, and three weeks before deeding a home to one of his sons, Mr. Hall updated the spreadsheet, outlining his intended estate plan and treating the transfer of the home to his son Kenneth as an advancement of his inheritance.
When Hall died, Kenneth believed that since the home was a gift, he should still receive his share of the trust. His siblings disagreed and believed that the home was an advancement on his share.
In re Gregory Hall Trust (Mich. Ct. App. March 16, 2023), the son argued that the trust was not modified by the spreadsheet, and thus the transfer of the home was a lifetime gift. If ruled in his favor, the result would have been that he was entitled to the house plus one-third of the remaining assets.
The court held that the spreadsheet did modify the revocable trust. In this case, the trust served as a will substitute, often done to avoid probate. The home was considered an advancement and, as such, would be treated as partial satisfaction of the son’s one-third interest. The ruling was upheld upon appeal. This case underscores the importance of clear instructions in a trust agreement.
Respect, Review and Revise
Estate planning is not a “once and done” undertaking — laws change, assets fluctuate and relationships change over time. These two court cases provide considerations to better prepare you and your family.
- Regularly review your estate plan with your team of advisors, including asset ownership and beneficiary designations (primary and secondary). Use a qualified estate planning attorney.
- Update details if you experience life-changing events (e.g., marriage, divorce, birth of a child or grandchild, relocation or dramatic change in net worth).
- Be diligent about the process and promptly sign your updates.
- Do-it-yourself estate planning can compromise your plan and potentially lead to disaster.
- All the above are heightened in importance when there are special circumstances, such as a beneficiary with disabilities.
- Even if the right result is achieved, probate contests often take many years to conclude, and relationships may never heal.
Most states have laws similar to those in the above cases, but laws can vary. When it comes to your estate plan, work with your team of advisors to ensure your plan is built to carry out your specific wishes; otherwise, with all due “respect” to the Queen of Soul, you may just be “day dreaming.”
To learn more about how wills and trusts fit in your estate plan, please contact Mark Parthemer at 561-571-4917, or email at email@example.com.
Mark Parthemer is Chief Wealth Strategist & Regional Director of Glenmede’s Florida Office.
This article is provided solely for informational purposes and is not intended to provide financial, investment, tax, legal or other advice. It contains information and opinions which may change after the date of publication. The author takes sole responsibility for the views expressed herein and these views do not necessarily reflect the views of the author’s employer or any other organization, group or individual. Information obtained from third-party sources is assumed to be reliable but may not be independently verified, and the accuracy thereof is not guaranteed. No outcome, including performance or tax consequences, is guaranteed, due to various risks and uncertainties. Readers should consult with their own financial, tax, legal or other advisors to seek advice on their individual circumstances.